Fact Checking Obama's Misleading Answer About Warrantless Wiretapping on The Daily Show

On last Thursday’s Daily Show, Jon Stewart boldly went where no mainstream reporter has gone so far this election cycle: asking President Barack Obama why has he embraced Bush’s warrantless wiretapping program after campaigning against it on civil liberties grounds. While Stewart’s question was commendable, Obama’s answer was puzzling because it seems so obviously untrue.

Stewart first reminded Obama of his Bush-era statements that “we don’t have to trade our values and ideals for our security,” and pointedly asked the President, “do you still believe that?” He then specifically raised warrantless wiretapping, which Obama frequently criticized as a presidential candidate in 2008:

STEWART: I think people have been surprised to see the strength of the Bush era warrantless wiretapping laws and those types of things not also be lessened—That the structures he put in place that people might have thought were government overreach and maybe they had a mind you would tone down, you haven’t.

OBAMA: The truth is we have modified them and built a legal structure and safeguards in place that weren’t there before on a whole range issues.

But let’s take a closer look at the President’s actions on wiretapping and related issues:

Voting against FISA Amendments Act, Filibuster Telecom Immunity

Early in his first presidential campaign, then-Senator Obama was a leading critic of giving telecom companies like AT&T immunity for breaking the law to assist in the government in warrantless wiretapping. He repeatedlypromised to filibuster any bill that contained retroactive immunity for telecom companies. Yet in 2008, when Congress debated the FISA Amendments Act—the law that allowed the President to give telecom companies full, retroactive immunity—Obama not only refused to filibuster the bill, but voted for it.

That decision came full circle just two weeks ago, when Obama’s Justice Department successfully convinced the Supreme Court to deny EFF’s appeal challenging the law’s constitutionality, ensuring AT&T and other telecommunications companies will never face legal consequences for breaking the law, both in the past and in the future.

The Obama administration, however, is actively opposing any new privacy safeguards or transparency provisions, saying it is their “top priority” to renew it with no changes.

Stopping the Use of the State Secrets Privilege

Congress isn’t the only place where the President has been hostile to any “legal structure or safeguards” for the warrantless wiretapping. He has steadfastly sought to prevent the courts from engaging in any meaningful review

Using the state secrets privilege for electronic surveillance is plainly wrong, since FISA specifically requires courts to determine the legality of national security spying. And of course the argument that the spying is a secret is increasingly untenable, as multiple whistleblowers, hundreds of pages of already-public evidence—including government admissions—and a massive construction project in Utah attest to its ongoing existence.

Sovereign Immunity

In addition, in both Jewel and other cases, the government has raised extremely technical legal arguments that the cases must be dismissed because it has “sovereign immunity.”In Al-Haramain v. Obama, a case where the government was caught red-handed illegally wiretapping attorneys, the Obama Administration was even able to convince the Ninth Circuit to dismiss the case because, according to the court, only government individuals can be sued, not the agencies that actually did the spying.

FISA court secrecy has never been more troubling, given the administration admitted in July that the FISA court ruled that collection done by the NSA violated the Fourth Amendment rights of some unknown American on at least one occasion. EFF has since filed a Freedom of Information Act lawsuit for that opinion, plus any others discussing the constitutionality of warrantless surveillance, but the Obama administration is fighting mightily against it.

Secret Safeguards Aren’t Safeguards

Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: here, here, and here), these secret safeguards we don’t know exist are clearly inconsequential.

Here’s hoping other reporters follows up on Stewart’s question soon and ask Obama to be much more specific about his past and future plans to make sure the American people are not illegally spied on.

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